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Opposition procedure before the European Patent Office
The opposition procedure before the European Patent Office (EPO) is a post-grant, contentious,〔"''(...) in G 9/91 and G 10/91 (...) the Enlarged Board held that in view of their special post-grant character, opposition proceedings under the EPC are in principle to be considered as contentious proceedings between parties normally representing opposing interests.''" in (Decision G 9/93 (6 July 1994) ), Reasons for the Decision, item 1.〕 ''inter partes'', administrative〔"''Proceedings at this level are called "administrative" rather than "judicial" though it is difficult to see why – after all the opposition division is deciding a dispute between rival parties.''" in Jacob LJ, (''Unilin Beheer BV v Berry Floor NV & Ors'' ) () EWCA Civ 364 (25 April 2007).〕 procedure intended to allow any European patent to be centrally opposed. European patents granted by the EPO under the European Patent Convention (EPC) may be opposed by any person from the public (no commercial or other interest whatsoever need be shown). This happens often when some prior art was not found during the grant procedure, but was only known by third parties.
An opposition can only be based on a limited number of grounds,〔"''The function of Article 100 EPC is to provide, within the framework of the EPC, a limited number of legal bases, ie a limited number of objections on which an opposition can be based.''" in (Decision G 1/95 (19 July 1996) ), reasons 4.1.〕 i.e. on the grounds that the subject-matter of the patent is not patentable, that the invention is insufficiently disclosed, or that the content of the patent extends beyond the content of the application as filed. The notice of opposition to a European patent must be filed in writing at the EPO (either at Munich, The Hague or Berlin), along with the payment of an opposition fee, within nine months from the publication of the mention of the grant of the patent in the European Patent Bulletin. Opposition Divisions of the EPO are responsible for the examination of oppositions. The opposition procedure may involve multiple opponents. According to the EPO, a European patent was once opposed by a record number of 27 opponents.〔(''European Commission Pharmaceutical Sector Inquiry, Preliminary Report - 28 November 2008, Comments from the EPO'' ), 10.03.2009 (Final), page 5.〕
==Purpose, framework, and available grounds ==
The purpose of the opposition proceedings is to give opponents, such as competitors, the opportunity to challenge the validity of a granted European patent.〔(G9/93 ), 6 July 1994, Reasons, point 3.〕 Opponents may also challenge only some of the claims of the European patent (although this is in practice rather unusual〔(Decision G 9/91 of the Enlarged Board of Appeal of 31 March 1993 ), point 8.〕), therefore limiting the framework of the opposition to the challenged claims.〔"By limiting the extent to which the patent is opposed to only certain subject-matters, the opponent deliberately refrains from making use of his right under the EPC to oppose remaining subject-matters covered by the patent. Such subject-matters are therefore, strictly speaking, not subject to any "opposition" in the sense of Articles 101 and 102 EPC, nor are there any "proceedings" in the sense of Articles 114 and 115 EPC in existence concerning such non-opposed subject-matters. Consequently, the EPO has no competence to deal with them at all." in (Decision G 9/91 of the Enlarged Board of Appeal of 31 March 1993 ), Reasons for the Decision, item 10.〕
However, an opposition can only be based on a limited number of grounds (i.e., objections) specified in the European Patent Convention, namely the grounds listed in .〔 An opposition can be based on the grounds that the subject-matter of the patent is not patentable (Article 100(a) EPC, for instance because the claimed invention is not new or not inventive), on the ground that the invention is insufficiently disclosed to allow a person skilled in the art to carry it out (Article 100(b) EPC), or on the ground that the content of the patent extends beyond the content of the application as filed –"or, if the patent was granted on a divisional application or on a new application filed under , beyond the content of the earlier application as filed"– (Article 100(c) EPC). An opposition can for instance not be validly based on the grounds that the invention lacks unity () or that the right to the European patent does not belong to the proprietor of the patent ().
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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